Legal circles question the locus of Gujarat government

Following quickly in the footsteps of the Central Bureau of Investigation (CBI), the Gujarat government has moved the Supreme Court against the August 29, 2011 Gujarat High Court order acquitting all 12 accused in the Haren Pandya murder case.

The CBI filed its appeal on November 25, 2011. The Gujarat government followed suit on December 1. However, legal circles are questioning the locus of the Gujarat government which was not a party to the case. A recent precedent set by the Supreme Court is also being cited in this context. In a 2010 ruling in the disproportionate assets case against former Bihar Chief Minister Lalu Prasad, the Supreme Court held that a State government cannot move the High Court against acquittals by the trial court in cases exclusively investigated by the CBI. The trial court acquitted Mr. Lalu and his wife, Rabri Devi, in the assets case. However, the CBI, which investigated and prosecuted the case, decided not to challenge the acquittal. Following this, the Bihar government moved the Patna High Court on its own.

The Gujarat police held charge of the Pandya murder case for a mere two days. Pandya, a Bharatiya Janata Party legislator and former State Home Minister was shot dead in his car in the Law Garden area of Ahmedabad on March 26, 2003. The case was transferred to the CBI on March 28, 2003. On August 29, 2011, the Gujarat High Court overturned the conviction by the trial court of all 12 accused, and adversely commented on CBI's shoddy investigation. Said the Court, “… the investigation clearly appears to have been so botched up and misdirected that the confessional statements recorded during police remand, before any police officer, could not be safely relied [upon] for convicting any of the appellants for commission of, abetment or conspiracy to commit, murder..” The Court remarked that the prosecution version had been rendered improbable by medical and forensic evidence, noting in particular the impossibility of Pandya being shot through the scrotum (one of the injuries) while sitting in a closed car with only a three-inch opening on the driver's side of the window.

In appealing against this verdict, the Gujarat government relied on Article 136 of the Constitution under which the Supreme Court has the discretionary power to grant special leave to appeal from any judgment. In the Lalu Prasad case, the Bihar government, invoking Section 378 (1) of the Code of Criminal Procedure, argued that it had the right to file an appeal since the CBI had declined to do so. Rejecting this contention, the Supreme Court said: “…[in that case] we would have to say that no matter that a complaint was not lodged by the State government or its officers; investigation was not done by its police establishment; prosecution was neither commenced nor continued by the State government; a public prosecutor was not appointed by the State government; the State government had nothing to do with the criminal case; all steps from the launching of prosecution until its logical end were taken by the CBI and yet the State government may file an appeal from an order of acquittal under Section 378 (1) of the Cr.PC that would be rendering the exception clause in Section 378 (2) redundant, meaningless and unnecessary..”

Available precedents

Senior Supreme Court advocate P.P. Rao told The Hindu that the Supreme Court was bound to consider the precedents available (the Lalu Prasad case among them) to it while considering the Gujarat government's locus. He also pointed that the Court had laid down guidelines in respect of appeals in general, restricting their scope to those rare cases where a gross injustice was seen to be done or where the judgment of the lower court was considered perverse: “Except where there is an injustice, the court in general will be slow to interfere in acquittals.”

In its 48th report, the Law Commission noted that India was an exceptional country in the matter of entertaining appeals against acquittals: “In most common law countries, the general rule is not to allow an appeal against acquittals. While a limited right of appeal against acquittals has been given in England in respect of an appellate judgment of acquittal, the general rule mentioned above is still adhered to. An unlimited and general rule given as in India in respect of appeals against acquittals is rare in Anglo-American countries.”

Significantly, Pandya's wife, Jagruti Pandya, has been doing the rounds of the Union Home and Law Ministries and petitioning the Supreme Court seeking a re-investigation of her husband's murder. But rather than feeling aggrieved by the Gujarat High Court judgment, she has drawn strength from it, arguing that the “real killers” need to be found.

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